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State v. Bynum

Court of Criminal Appeals of Tennessee, Nashville

October 20, 2017


          Session July 19, 2017

         Appeal from the Circuit Court for Franklin County No. 2014-CR-126 J. Curtis Smith, Judge

         The defendant, Robert J. Bynum, appeals his Franklin County Circuit Court jury conviction of facilitation of the possession with intent to sell or deliver .5 grams or more of cocaine, challenging the sufficiency of the evidence as well as the propriety of the total effective sentence imposed for all the convictions in this case. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

          Christina Mincy, Chattanooga, Tennessee, for the appellant, Robert J. Bynum.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Courtney C. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which John Everett Williams and Timothy L. Easter, JJ., joined.



         The defendant's convictions relate to the discovery of drugs following a traffic stop in Franklin County.

         Just after midnight on October 31, 2013, Winchester Police Department Sergeant Troy Clark stopped a vehicle driven by David Jones for failing to stop at a stop sign. The defendant was a passenger in the vehicle. After a routine driver's license check revealed that Mr. Jones's driver's license had been revoked, Sergeant Clark placed Mr. Jones under arrest and patted him down for weapons before placing him in the back of Sergeant Clark's patrol car. Mr. Jones granted Sergeant Clark permission to search the vehicle.

         As Sergeant Clark searched Mr. Jones's vehicle, Winchester Police Department Officer Dustin Elliott, who had arrived to assist Sergeant Clark, took charge of the defendant. Officer Elliott had the defendant place his hands against the vehicle and spread his legs while the officer performed "an outer clothing pat down just to see if there's any kind of bulges that would indicate possible weapons." During that initial pat down, Officer Elliott did not discern anything to cause him alarm. Afterwards, as he stood talking to the defendant while Sergeant Clark searched the vehicle, Officer Elliott noticed the defendant engaging in odd movements that led the officer "to believe that maybe there was possibly something in his pants he was trying to hide, " explaining, "I noticed that he . . . was holding his pants and kind of how he was stepping, it wasn't a normal step, how somebody would normally walk."

         At that point, Officer Elliott informed the defendant that he would perform a second pat down. During the second pat down, Officer Elliott noticed "a bulge that [he] didn't notice from the first pat down." When questioned about the bulge, the defendant "advised that he had something that was narcotics" and removed from his pants a "clear plastic bag" that contained eight pills later identified as dihydrocodeinone. Officer Elliott said that he did not, at any time, search inside the defendant's clothing. Upon the discovery of the pills, Sergeant Clark placed the defendant under arrest, handcuffed his hands in front of his body, and placed him into the patrol car with Mr. Jones. Sergeant Clark and Officer Elliott then continued to search Mr. Jones's car. During his search of Mr. Jones's vehicle, Sergeant Clark discovered a crack pipe in the trunk.

         At the conclusion of the traffic stop, Sergeant Clark drove the defendant and Mr. Jones to the jail. Sergeant Clark parked his patrol car in the sally port area of the jail then locked the vehicle while he accompanied the defendant and Mr. Jones into the jail. Sergeant Clark confirmed that $210.00 was collected from the defendant consisting of "eight 20s, two 10s, four fives, and 10 ones." Sergeant Clark returned to his patrol car after he had obtained warrants for the arrest of Mr. Jones and the defendant. He then drove to the police department, where he searched the back seat of the patrol car, as was his custom. As part of his search, Sergeant Clark removed the back seat of his patrol car. Underneath the seat "approximately in the middle, " Sergeant Clark discovered a package of what he believed to be crack cocaine. Testing performed by the Tennessee Bureau of Investigation established that the substance was 10.8 grams of crack cocaine. Sergeant Clark testified that the street value of the drugs was $2, 000.00.

         Sergeant Clark acknowledged at trial that he did not observe any odd or suspicious behavior from the defendant prior to or during transport. When asked whether he actually remembered searching his patrol car before the defendant's arrest, Sergeant Clark admitted that he had no independent recollection of having done so but that inspecting his vehicle following every ...

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